In 2017, the U.S. Court of Appeals for the Second Circuit upheld DEC’s denial of Constitution’s application for a 401 water quality certification (WQC). Constitution Pipeline Co, LLC v. N.Y.S. Dep’t of Env’t Conservation, 868 F.3d 87 (2d Cir. 2017). The following quotes are highlighted in the decision because they establish binding precedent for the DEC’s review of Constitution’s current application.
“We note first that there is nothing in the administrative record to show that NYSDEC received the information it had consistently and explicitly requested over the course of several years.” Id. at 99-100.
“We disagree that NYSDEC’s action was preempted.” Id. at 100.
“A state’s consideration of a possible alternative route that would result in less substantial impact on its waterbodies is plainly within the state’s authority. See, e.g., Islander East II, 525 F.3d at 151-52.” Id. at 101.
“Here, the record amply shows, inter alia, that Constitution persistently refused to provide information as to possible alternative routes for its proposed pipeline or site-by-site information as to the feasibility of trenchless crossing methods for streams less than 30 feet wide–i.e., for the vast majority of the 251 New York waterbodies to be crossed by its pipeline–and that it provided geotechnical data for only two of the waterbodies.” Id. at 103.
On November 18, 2021, the Second Circuit vacated four FERC orders and instructed FERC to dismiss the agency proceedings in 2021. [link to decision] Since that order was issued, there is no longer a legally valid (1) docket, (2) environmental impact statement, (3) federal license for this project, or (4) a FERC order determining that DEC waived its rights to deny the 401 water quality certification in 2016.
On May 30, 2025, Constitution applied for a 401 WQC from the DEC before applying for a license to construct the pipeline from FERC. While we’re glad that DEC issued three notices of incomplete application, it should have denied Constitution’s application, forcing Constitution to seek judicial review.
Instead, Constitution petitioned FERC on December 19, 2025 to re-issue its 2014 Certificate of Public Convenience and Necessity and re-affirm its 2019 order declaring that DEC waived its right to deny the 401 water quality certification. DEC and the NY State Office of the Attorney General must now forcefully challenge Constitution’s Petition at FERC and in the U.S. Court of Appeals. Otherwise, the state’s right to protect our water quality will be lost.